Clarke v. Clarke, 73608

• Court: Court of Appeal of Missouri (US)
• Citation: 983 S.W.2d 192
• Docket Number: No. 73608,73608
• Parties: Susan Linda CLARKE, Petitioner/Respondent, v. Paul William CLARKE, Respondent/Appellant.
• Decision Date: 29 December 1998

Page 192

983 S.W.2d 192 Susan Linda CLARKE, Petitioner/Respondent,
v.
Paul William CLARKE, Respondent/Appellant. No. 73608. Missouri Court of Appeals,
Eastern District,
Southern Division. Dec. 29, 1998.

Page 193

King E. Sidwell, Sikeston, for appellant.

Kenneth C. McManaman, Cape Girardeau, for respondent.

RICHARD B. TEITELMAN, Judge.

Husband appeals for the second time from a dissolution decree. In his first appeal, Husband challenged the division of marital property, the amount of maintenance and child support, the use of an expert witness and the award to Wife of $20,000 in attorney's fees for the trial. This Court reversed and remanded solely on the issue of maintenance, affirming the trial court's judgment in all other respects. Upon remand the trial court entered a judgment which substantially reduced Wife's amount of monthly maintenance but made the reduced maintenance award prospective only. The new judgment also awarded Wife $5,000 in attorney's fees incurred as a result of the first appeal. In his appeal from the new judgment, Husband raises three issues. First, he asserts that the reduced maintenance award is still excessive. Second, he argues that the reduced maintenance award should have been applied retroactively to the date of original judgment, so as to afford him restitution for amounts he previously overpaid. Third, he claims the trial court exceeded its authority in awarding Wife attorney's fees for the prior appeal. We affirm as to the amount of maintenance and the award of attorney's fees. We reverse on the issue of restitution.

I. Factual and Procedural Background

The original dissolution decree in this matter was entered on September 29, 1995. Among the provisions of the Original Judgment were the following: Wife was awarded custody of the parties' four minor children and Husband was ordered to pay $3,500 per month in child support. Wife was awarded maintenance in the amount of $2,500 per month. The court awarded Wife the family home and Husband (who is a physician) his medical office building, a duplex and certain other real estate. The court then divided the remaining marital property. Pursuant to that division, Wife was awarded $654,000 in income-producing property. Husband also was ordered to pay Wife's attorney's fees up to $20,000.

Husband filed a timely Notice of Appeal from the Original Judgment. His appeal challenged virtually every contested issue at trial, including the division of marital property, child support, use of an expert, maintenance, and award of attorney's fees.

While that appeal was still pending, in February of 1997, Wife filed her "Verified Motion Pendente Lite Requesting Suit Monies, Costs, Attorney Fees And Litigation Expenses Related To And On Appeal." Wife's motion alleged, inter alia, that her anticipated attorney's fees on appeal were estimated to total $15,000; that Husband's points on appeal were all meritless; and that there was no just reason why Husband should not be required to pay Wife's costs and fees incurred as a result of the appeal.

On April 23, 1997, the trial court held a full evidentiary hearing regarding Wife's motion for attorney's fees on appeal. Two days later, the court entered a judgment and order denying Wife's motion. This judgment was not appealed.

On August 12, 1997, this Court issued its opinion in the first appeal. In re Marriage of Clarke, 950 S.W.2d 11 (Mo.App. E.D.1997), (hereinafter, "Clarke I "). In Clarke I we held that it was error for the trial court, in determining the necessity for and amount of maintenance, to fail to consider the amount of money Wife could reasonably be expected to receive from her income-producing property.

Page 194

Id. at 13. We reversed and remanded, with directions that the trial court redetermine maintenance after hearing evidence concerning the amount of income Wife received from her investment property. Id.

On October 28, 1997, the trial court held a new hearing to reconsider the issue of maintenance. At this hearing the court considered evidence concerning Wife's current income from all sources, Wife's estimated current reasonable and necessary living expenses, and Husband's current income. The court found that Wife's investment income, derived from the assets previously awarded her, averaged between $2,000 and $2,500 per month. The court further heard testimony from Wife that her current total estimated reasonable and necessary living expenses were roughly $5,600 per month, as compared to $6,000 per month at the time of the initial trial. Since the trial, Wife had also expended approximately $150,000 for remodeling and improving the family home.

The court also heard testimony concerning Husband's current income. He testified that the year initially used to determine his earned income, 1994, was the pinnacle year of his OB-GYN practice, and that since that time he had delivered fewer babies and earned considerably less money. He testified that his total net monthly earned income for 1996 was $26,841. He projected net monthly earned income for 1997 of $22,784. He claimed monthly expenses (including personal living expenses, home mortgage, office mortgage, and state and federal taxes) of...